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Recent Broward Law Blog Features

Friday, January 6, 2012

While everyone wants to be acquitted or have their cases dismissed, if the odds of that are unlikely, a person charged with a crime wants to know what is the next best alternative.

In those instances, the best thing you can do for your client is secure for them a disposition which is known as a “withheld adjudication.”

A court may do one of two things with the disposition of your case- it can adjudicate you guilty, or withhold adjudication of guilt. An adjudication means you have been found guilty and are stuck forever with that finding, in this lifetime and the next. It means you have a permanent criminal record, which can never be sealed or expunged, removed or eliminated, absent a legislative change or pardon from the Governor.

An adjudication of guilt on a felony strips you of a breadth of your rights as a citizen, not only your right to vote but to hold a variety of public service jobs, as well as professional licenses. It takes away your driver’s license for two years, and it impacts your right to collect government benefits. Thus, if you are entering a plea to a criminal charge anytime anywhere, you want to seek a withheld adjudication of guilt, whether it is for a misdemeanor or felony.

In Florida and elsewhere, that is becoming more and more difficult. For example, if you enter a plea to drunk driving, courts have no discretion. It is mandatory that they adjudicate you guilty. Fortunately, that is not a felony, so some of your rights are preserved. But more and more criminal acts are coming under the penumbra of mandatory adjudications, the most frustrating of which are battery cases against law enforcement officers.

Very often, the battery charges evolve out of barroom brawls in which intoxicated patrons do not even know what is going on at the time. Sometimes a Good Samaritan attempting to render aid to a police officer is seen by an arriving officer as possibly assaulting their fellow officer. They are then suddenly struggling with one officer while trying to help the other. In the melee that follows, they wind up in jail too. In other instances, of course, people, good people sometimes do get drunk, and then act badly. There are no second chances.

In addition, more and more legislators are now talking about expanding the concept of mandatory adjudications to many other offenses. Florida, for example, now includes fleeing from a police officer as one of those offenses. Heaven help you if you do not hear those sirens.

A misdemeanor is less serious than a felony. In fact, the word ‘misdemeanor’ is derived from the Latin phrase for ‘misbehavior.’ Unfortunately though, if you are ever adjudicated guilty, even of only a misdemeanor, you will never, under Florida law, ever be able to get your record expunged. And if the adjudication is for a sexual offense, you can be barred from working in nursing homes, schools, and a variety of venues. Those that plea out may be having to deal with those pleas for the rest of their life, as these cases generally can never be expunged or sealed. An expunction erases a criminal charge from your ‘record.’

Many of those arrested for sexual offenses in public parks are charged with the crime of battery. It is easy to prove. All an officer has to do is show that another person engaged in a touching of the cop without his lawful consent. It does not have to be a harmful or hurtful contact, just an innocent touching. But an adjudication on this battery charge will prevent it from ever coming off of your record. This means that forevermore anyone will be able to access facts about your arrest, even if you pled guilty out of convenience, and it was the cop who induced or invited you to touch him in the first place.

Two years ago, I handled a case for a drag queen, Tiny Tina, who had been adjudicated for engaging in a lewd act in 1976, when she hosted a wet jockey contest at the Copa Bar. In the year 2010, she was denied a job at an assisted living facility when a state records search revealed that 34-year-old finding of guilt. Fortunately, I eventually had that horrible ruling overturned.

Still, it is getting tougher to seal or expunge any record of your arrest for misdemeanors or felonies. For example, charges that are now disqualifying, and make you ineligible for an expunction, include sexual offenses, acts of domestic violence, battery, residential burglaries, stalking and fleeing police. State law allows you only one expunction ever, and only if you have never been ‘adjudicated.’

When the term ‘adjudication’ is used in traffic court, the meaning is drastically different. You see, traffic tickets are considered only ‘civil infractions.’ Therefore, if you are found guilty and ‘adjudicated,’ it simply means that you are getting points assessed against your driver’s license by the Department of Motor Vehicles. It does not mean that you have been found guilty of a crime. If that is the worst thing that ever happens to you, then you will have lived a very decent life.

Many people come to Florida on vacation and wind up on probation. Many come from urban populations where certain behaviors are treated more leniently and liberally. In Broward, if you commit a felony, you are more likely to go to jail than almost any county in the state. Sell just one ounce of marijuana to an undercover police officer and our state attorney’s office will make you a plea offer of no less than 18 months in Florida state prison.

Ultimately, these harsh laws present grave consequences to the average citizen who makes one costly mistake. It means that a momentary lapse today can brand you as a felon for life.

This means that years later, your arrest can become subject to permanent public scrutiny, accessible to anyone – friends, enemies, lovers, creditors, employers, credit agencies, and anyone with a computer that has Internet access.

We live in a country where one out of every 100 adults is either in prison or under some form of judicial probation or supervision. For Hispanics and African Americans, those statistics are even more dramatic.

Too many acts have been declared illegal, and too often government has restrained our liberties. Florida is one of those places. Keep it in mind the next time you go off to party. The sun tans as well as burns.

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Words of Wisdom

“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)